Students must obtain affirmative consent for every sexual act; being passive is not consent
On July 7, 2015 New York enacted a new law that law requires colleges in New York State to adopt or implement:
• A uniform definition of affirmative consent, defining consent as a knowing, voluntary, and mutual decision among all participants to engage in sexual activity;
• An amnesty policy, to ensure that students reporting incidents of sexual assault or other sexual violence are granted immunity for certain campus policy violations, such as drug and alcohol use;
• A Students’ Bill of Rights, which campuses will be required to distribute to all students in order to specifically inform sexual violence victims of their legal rights and how they may access appropriate resources. The Bill of Rights clearly states that students are given the right to know they can report sexual assaults to outside law enforcement, including the State Police;
• Comprehensive training requirements for administrators, staff, and students, including at new student orientations.;
• Reporting requirements for campuses to annually submit aggregate data on reported incidents of sexual violence and their adjudication and handling to the State Education Department;
Additionally, the new law includes:
• The creation of a new unit within the State Police called the “sexual assault victims unit,” with a focus on advanced training in responding to sexual assaults and related crimes that shall also provide assistance to campus police or local law enforcement, as well as training to college campus communities;
• A commitment of $10 million to help combat campus sexual assault through various partners, split in the following manner: $4.5 million to rape crisis centers to provide services and resources to students, $4.5 million to the State Police to create sexual assault victims unit, and $1 million to colleges and universities; and
• A requirement for first responders to notify survivors of their right to contact outside law enforcement.
Presently the law does not create a criminal offense, however violating the law could result in criminal charges, as well as disciplinary action by the school. Colleges in New York have until September of 2016 to comply by re-rewriting their conduct codes and policies.
There is growing momentum to expand affirmative consent rules beyond college campuses. A draft sexual assault law written by the American Law Institute would make sex without express consent a misdemeanor anywhere. The legal scholars and judges, who make up the institute, write draft criminal laws that are often adopted by states as well as the federal government.